The situation has never been so dire, worse than late this spring when a vexed legal community warned the Quebec government that the justice system, mired in a series of crippling labour standoffs that spurred mounting adjournments, was desperately in need of more funds to prop up the justice system. But while tense labour relations with a host of legal actors have subsided since the fall thanks to new collective agreements and a new legal aid accord, legal pundits assert far more has to be done to halt the exodus of courtroom personnel who are leaving in droves because remuneration is simply not competitive.
“There is a crisis in the justice system that has led to a crisis of confidence,” noted Catherine Claveau, president of the Quebec Bar. “And I, as the president of a professional order whose primary mission is the protection of the public, when the situation of underfunding in particular means that our institutions are undermining the right of citizens to have access to effective and quality justice, well for me, this corresponds to a real crisis.”
Élizabeth Ménard, a Montreal criminal lawyer with Yves Ménard Avocats Inc. and head of the Montreal Criminal Defence Lawyers Association (AADM), asserts that the “situation has never been worse” than it is at present, with courtrooms closed or inaccessible every day, cases postponed, bail hearings delayed, and “fairly simple” trials scheduled more than a year down the line. “Obviously, it’s all citizens, not only the accused but also victims who are affected,” said Ménard. “It’s really discouraging because we don’t know what to say to our clients anymore. I’m embarrassed to go and see the defendants and explain the situation to them. It’s embarrassing.”
The Quebec Bar is calling on the provincial government to double the budget allocated to the justice system from the current 1.1 per cent of Quebec’s total budget to 2.2 per cent. But those pleas have so far fallen upon deaf ears, with the result that the situation seemingly came to a head recently in Montreal when ten courtrooms of the criminal chamber could not open because of a dearth of a courtroom clerks, a situation echoed across the province. That quandary has even prompted Quebec Justice Minister Simon Jolin-Barrette to acknowledge that he is in the midst of negotiating with the Treasury Board to boost the salaries of courthouse staff.
“It’s evidence that the Minister of Justice is also aware of this problem and that he, for his part, is trying to improve things by increasing the current salary of special clerks in the Quebec government,” said Claveau. “Now, I’m not sure that’s enough. We’ve been talking about this (underfinancing) for years. Monies have not been injected in a sufficient manner for years, which means that we are really facing a shortage of manpower.”
It was news to Christian Daigle, president of the Syndicat de la fonction publique et parapublique du Québec (SFPQ), the union that represents court clerks and other courtroom personnel, that the Quebec Justice Minister was looking to increase the salaries of courtroom personnel. “I learned this information from newspaper articles so I invite Mr. Jolin-Barrette, whom I know personally, to give us a call so that we can be involved in the discussion and find solutions together,” said Daigle. “But before putting anything in place, he’ll have to talk to us.”
Daigle said he warned Minister Jolin-Barrette that salaries were far from competitive with Quebec municipalities and the private sector where they can earn between $15,000 and $20,000 more in spite of a new agreement reached in June. In fiscal year 2019-2020, more than 300 courtroom personnel left for greener pastures, a trend that accelerated in fiscal 2021-2022 when 541 employees out of 2,593 left. Under terms of the deal, SFPQ members will receive a six per cent increase spread out over three years from April 2020 to March 2023, excluding bonuses. But that is not stemming the exodus, added Daigle.
“We managed to slow down the massive departures that took place through the justice system, probably because of the collective agreement that we signed,” said Daigle, who is at the negotiating table with the Quebec government over a new labour agreement. “The new deal is a step in the right direction but that hasn’t stopped people who were already looking to go elsewhere from continuing to look elsewhere. There are departures that are still taking place quietly. We told the Quebec government in the past, and we are telling them now at the negotiating table that the salary package isn’t enough.”
In the meantime, the dwindling numbers of court clerks who specialize in civil or family law matters have been compelled to work in criminal law proceedings after taking an “accelerated 101 criminal course” because of the landmark Jordan ruling, said Daigle. People are bounced from one kind of court to another, depending on what is deemed to be urgent and depending on the deadlines, added Daigle.
The same exacting circumstances holds true for judicial assistants, remarked Daigle. At present, 20 per cent of Quebec judges do not have judicial assistants, and many judicial assistants end up having to divvy their time and work for two judges rather than just one as is supposed to be the case. “When judicial assistants receive directives from different judges, who are they should they prioritize?” asked rhetorically Daigle. “It leads to uncertainty, and stress, for employees. The more stress there is, the less people want to stay. The less people want to stay, the more stress it creates.”
Already under heavy strain, the Quebec justice system will likely be stretched next year, with the prospect of even more serious judicial delays, after the Court of Quebec’s new controversial reform will really kick in. As of September, 160 provincial court judges of the Criminal Division have curbed the amount of days they sit, from two days out of three to one day out of two so that they can spend more time writing judgments and managing cases. Chief Justice Lucie Rondeau is calling for the appointment of 41 provincial court judges to attenuate judicial delays once the new work scheme is implemented.
A report prepared by the Quebec Ministry of Justice predicts that at least 50,000 criminal cases annually could exceed the 18-month time limit set by Jordan, prompting the Attorney General of Quebec to ask the Quebec Superior Court to intervene, seeking a stay of Chief Justice Rondeau’s initiative. The Quebec government asserts that the move will lead to “irreparable harm” to victims and the accused as well as undermine the sound administration of justice and public confidence in the judicial system.
But in Procureur général du Québec c. Rondeau, 2022 QCCS 4081, Quebec Superior Justice Pierre Nolet rejected the application for a stay, pointing out that the median age of active cases has risen from 217 days in 2017-2018 to a projected 329 days in 2021-2022, before the reform was even considered. “What is the Ministry doing about it?” asked Justice Nolet. “Despite all the measures put in place… the median age of active cases is exploding. The mere fact that the (reform) may cause additional delay cannot establish irreparable harm separate from that which already exists without the (reform).”
Chief Justice Rondeau declined to comment because the matter is “currently being analysed (sub judice) by the courts seized with legal remedies on this subject” of judicial delays and the court’s reform, said Anne Latulippe, Executive assistant to the Chief Justice.
Claveau, the Quebec Bar’s bâtonnière, says it’s high time to explore new alternatives to remedy the crisis by accelerating the drive to modernize the justice system and placing greater accent on alternative dispute resolutions, in addition to pouring more monies into the justice system.
“We will continue to hammer away at (increasing) the budget, and try to help the Minister of Justice convince the Treasury Board to give more money,” said Claveau. “But also to find with our partners, with the deputy ministers in the Ministry of Justice, we will sit down to see how we, at the Bar, could help to relieve the congestion in the justice system, improve mediation services for small claims cases, and find other solutions to unclog the system and improve access to justice.”
Ménard believes the Quebec government must take concrete measures, and do so promptly. “It’s necessary for the government to raise wages and inject money into the system because the system is collapsing,” said Ménard. “This is really the case.”
It might interest those concerned about this situation to learn that Canada’s Chief Justice, Richard Wagner and the Commissioner for Federal Judicial Affairs, Marc Giroux, were among the participants identified on this programme – https://iaca.memberclicks.net/assets/Helsinki/IACA_2022_Summarized_Agenda.pdf – for a conference held in Helsinki in October.
One reason this interests me is that I had learned that at one time there was a Canadian organization called the Association of Canadian Court Administrators, which presumably was a voice for the interests of courthouse employees. What happened to this organization? I have been unable to find out. Some information I have found relating to the International Association for Court Administration suggests that such organizations do exist in some other countries, including the U.S.